People v. Bolden

• Decision Date: 24 November 2010
• Citation: 78 A.D.3d 1419,911 N.Y.S.2d 265
• Parties: The PEOPLE of the State of New York, Respondent, v. Swahiti BOLDEN, Appellant.
• Court: New York Supreme Court — Appellate Division

911 N.Y.S.2d 265
78 A.D.3d 1419

The PEOPLE of the State of New York, Respondent,
v.
Swahiti BOLDEN, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Nov. 24, 2010.

911 N.Y.S.2d 266

Peter M. Torncello, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant.

P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), for respondent.

Before: SPAIN, J.P., KAVANAGH, STEIN, McCARTHY and EGAN JR., JJ.

KAVANAGH, J.

78 A.D.3d 1419

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered March 24, 2009, convicting defendant upon his plea of guilty of the crime of

911 N.Y.S.2d 267

criminal possession of a weapon in the second degree.

In satisfaction of a four-count indictment, defendant pleaded

78 A.D.3d 1420

guilty to criminal possession of a weapon in the second degree. He was thereafter sentenced, as a second violent felony offender, to the agreed-upon seven-year prison term followed by five years of postrelease supervision. Defendant appeals.

Preliminarily, we find that County Court's cursory references to a purported appeal waiver during the plea allocution were insufficient to give it effect. This is particularly so because the record lacks any indication that such a waiver was a negotiated part of the plea agreement or that defendant had discussed the matter with counsel and understood its significance ( see People v. Middleton, 72 A.D.3d 1336, 1337, 898 N.Y.S.2d 729 [2010]; People v. Moran, 69 A.D.3d 1055, 1056, 891 N.Y.S.2d 678 [2010]; People v. Riddick, 40 A.D.3d 1259, 1259-1260, 836 N.Y.S.2d 338 [2007], lvs. denied 9 N.Y.3d 925, 926, 844 N.Y.S.2d 180, 181, 875 N.E.2d 899, 900 [2007] ). Accordingly, we cannot agree with the People's claim that defendant knowingly, intelligently and voluntarily waived his right to appeal ( see People v. Callahan, 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992] ).

Turning to defendant's arguments, his failure to move to withdraw his plea or vacate the judgment of conviction renders defendant's challenges to the voluntariness of the plea or the factual sufficiency of his plea allocution unpreserved for our review ( see People v. Glynn, 73 A.D.3d 1290, 1291, 900 N.Y.S.2d 513 [2010] ). Nor does the exception to the preservation rule apply, as defendant made no statements during the plea allocution that cast doubt on his guilt or tended to negate an essential element of the crime ( see People v. Scitz, 67 A.D.3d 1251, 1251, 889 N.Y.S.2d...